On June 21, 1979, this Court found that the Commonwealth's 180 day rule violated the class's and named plaintiffs' right to a free appropriate public education under the Act. Armstrong v. Kline, 476 F. Supp. 583, 605 (E.D.Pa.1979).
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Injunctive relief was granted to class members in Remedial Orders #1 and #2, entered August 1 and September 5, 1979, respectively, and to the named plaintiffs in Orders dated July 5 and July 17, 1979.

Defendants sought interlocutory review of the judgment, and on July 15, 1980 the Court of Appeals issued its opinion. Battle v. Commonwealth, 629 F.2d 269 (3d Cir., 1980). Although it essentially agreed with this Court that the 180 day limitation violated the Act, the Court of Appeals based its conclusion on different reasoning. As a result, the case was remanded for consideration of whether any of the remedial orders required modification. In the interim, such orders were to remain in effect. Defendant Scanlon has filed a motion to vacate all of this Court's remedial orders. For reasons discussed below, the Motion will be denied.

Discussion

In ruling on the validity of the 180 day rule, this Court focused on the content to be given the phrase "free appropriate public education." We found in the Act's definition of "special education," one of the components of an appropriate education, an emphasis on meeting the "unique needs" of the handicapped child. Recognizing that "needs arise in (the) context of achieving certain ends, and surely there are certain ends, and not others, that are the concern of this legislation," we turned our inquiry to the goals of the education that states are required to provide under the Act. Although we found no explicit guidance in the Act, we found throughout the legislative history an express intent to "provide for that education which would leave these children, upon school's completion, as independent as possible from dependency on others, including the state, within the limits of the handicapping condition." 476 F. Supp. at 604. Coupled with our factual finding that "for some SPI and SED children, including the named plaintiffs, interruptions in programming, because of regression and the length of time it takes to regain lost skills and behaviors, render it impossible or unlikely that they will attain that state of self-sufficiency that they could otherwise reasonably be expected to reach," Id. at 597, this legal conclusion led us to hold that the inflexible 180 day limitation on education violated the Act.

Having concluded states bear the initial responsibility for formulating reasonable educational objectives and reasonable means for achieving those objectives, the Court of Appeals determined the Act placed two restrictions on the states in these areas: review and approval by the Commissioner of Education and detailed procedures for the formulation of IEPs. Id. at 279. It found the Commonwealth's 180 day rule conflicted with both of these provisions.

The Court of Appeals agreed with this Court that the Act's focus on the "unique needs" of the handicapped child mandates consideration of the individual needs of each handicapped child. It noted the statutory requirement of the formulation of an IEP for each child further underscored the Act's emphasis on the individual and found this emphasis to be especially necessary in view of the wide variety of handicapping conditions covered by the Act. An inflexible policy such as the Commonwealth's 180 day rule, which precludes this individualized consideration, is incompatible with this aspect of the Act and must fall. In addition, the Court found the rule to be invalid because it had not been "filtered" through the Commissioner of Education and the general public. Id. at 280-281.

With this guidance in mind, the Court turns to the question of whether the Orders issued pursuant to our June 21, 1979 ruling must be modified or vacated. Because the Court of Appeals held that states are in the first instance charged with the responsibility for establishing education goals, defendant Scanlon urges the Court to vacate all Orders entered in this action until the Commonwealth has developed such goals in cooperation with the commissioner of Education. This we decline to do.

As an initial matter we note the Court of Appeals expressly found the 180 day rule to be invalid under the Act, regardless of how promulgated and regardless of the existence or lack of any state policy, due to its preclusion of individualized consideration. Contrary to defendant Scanlon's assertion, we find nothing in the Court of Appeals ruling which would indicate the 180 day rule might be found "an acceptable means of allocating scarce resources."
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As defendant Scanlon correctly argues, the Court of Appeals was concerned that states not be precluded from articulating educational policies predicated on reasonably conceived goals; however, because no state policy incorporating the 180 day rule could be found valid under the Act, plaintiffs are entitled to immediate relief from the illegal rule. In short, the Court of Appeals and this Court agreed that the 180 day rule was invalid but disagreed as to the source of the standard to be used in determining which children are entitled to education in excess of 180 days.

(a) The general provisions of this Chapter shall provide the basis for early identification and evaluation of all exceptional persons and for planning, developing, and operating special education programs and services. It shall be the policy of the Board, through the Secretary of Education, to provide exceptional school-aged persons with quality special education programs and services which will ...

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